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HomeMy Public PortalAboutthomas hutton 2018.pdfCITY OF TYBEE ISLAND CITY ENGINEER SERVICES CONTRACT CONTRACT NO. "City Engineer" This AGREEMENT is datede.2849, �between the Owner, CITY OF TYBEE ISLAND, GEORGIA, having its principal o fice at 403'ButlerStreet, Tybee Island, GA 31328 and THOMAS & HUTTON ENGINEERING CO. having its principal office at 50 Park of Commerce Way, Savannah, GA 31405 ("CONSULTANT"). ARTICLE 1. SCOPE OF WORK: During the continuance of this agreement, CONSULTANT agrees to provide supervision, labor, and equipment and tools to perform civil engineering, planning, and surveying consulting. For all work for which a scope can be developed, CONSULTANT will provide CITY OF TYBEE ISLAND with an Addendum for services needed to complete the work. After acceptance by CITY OF TYBEE ISLAND, the Addendum will be incorporated into Contract No. CITY OF TYBEE ISLAND MASTER SERVICES CONTRACT "City Engineer." ARTICLE 2. GENERAL PROVISIONS: PAYMENT FOR SERVICES For services rendered, OWNER shall pay CONSULTANT as outlined in the Letter Agreement for Services. Payment for services on the basis of "Time & Expense" shall be paid in accordance with the schedule of charges attached hereto. Project related costs for printing, reproductions, materials, and travel will be billed as reimbursable expenses. Projects will be billed monthly or at the completion of the work, whichever comes sooner, with payment due upon receipt. Payment shall be considered overdue after forty-five (45) days from date of invoice, with interest charged at a monthly rate of 1.5 percent (18 percent annual rate). CONSULTANT reserves the right to suspend work hereunder or any other work to be performed by CONSULTANT for OWNER or any of its affiliates under a separate agreement or agreements with CONSULTANT in the event of delinquent payment by OWNER to CONSULTANT hereunder or in the event of delinquent payment by OWNER or its affiliates to CONSULTANT under a separate agreement or agreements. For all purposes hereof, affiliate shall mean (i) in the case of an individual, any relative of any person listed among the following, on any officer, director, trustee, partner, manager, employee or holder of 5 percent or more of any class of the voting securities of or equity interest in the OWNER; (iii) any corporation, partnership, limited liability company, trust or other entity controlling, controlled by or under common control with the OWNER; or (iv) any officer, director, trustee, partner, manager, employee or holder of 5 percent or more of the outstanding voting securities of any corporation, partnership, limited liability company, trust or other entity controlling, controlled by, or under common control with the OWNER. In the event legal action is necessary to enforce the payment terms of this Agreement, the CONSULTANT shall be entitled to collect from the OWNER any judgment or settlement sums due, plus reasonable attorneys' fees, court costs and other expenses incurred by the CONSULTANT for such collection action and, in addition, the reasonable value of the City of Tybee Island Master Services Contract February 28, 2018 CONSULTANT's time and expenses spent for such collection action, computed according to the CONSULTANT's prevailing fee schedule and expense policies. PERIODS OF SERVICE After receipt of this fully executed contract and subsequent Addenda from CITY OF TYBEE ISLAND, Consultant will perform described services as outlined in Addenda. ASSIGNMENT Neither party to this Agreement shall transfer, sublet or assign any rights or duties under or interest in this Agreement, including but not limited to monies that are due or monies that may be due, without the prior written consent of the other party. Subcontracting to subconsultants, normally contemplated by the CONSULTANT as a generally accepted business practice, shall not be considered an assignment for purposes of this Agreement. OWNER'S RESPONSIBILITIES A. Access Owner shall make provisions for the Consultant to enter its lands as required to perform such work as surveys and inspections in development of the property. B. Owner's Representative The Owner shall designate in writing one person to act as Owner's Representative with respgct to the work to be performed under this Contract. This Representative shall have) complete authority to transmit instructions, receive information, interpret, and define Owner's policy and decisions, with respect to the product, materials, equipmenit, elements, and systems pertinent to the work covered by this Contract. C. Fees The Owner is responsible for payment of fees associated with the project. Such fees include permit review and application fees, impact fees, and capacity fees. The Consultant will notify the Owner regarding the amount of fees and timing of payment. CONSULTANT'S RESPONSIBILITIES In providing services under this Agreement, the CONSULTANT shall perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in the same or similar locality. No other representation, expressed or implied, and no warranty or guarantee is included or intended in the Agreement, or in any report, opinion, document, or otherwise. The professional :services performed under this Contract, as defined in the scope in subsequent addenda, shall be consistent with sound engineering and surveying practices, and shall incorporate federal, state, and local regulations and standards that are applicable at the time the Consultant rendered his services. Owner's Initials -2- Consultant's Initials P:\AGRMENTS\TYBEE ISLAND \Master Services Contractdoc City of Tybee Island Master Services Contract February 28, 2018 INSURANCE Contractor shall procure and maintain, at its sole cost and expense, the following insurance coverage: 1. Workers' Compensation: Coverage A. Statutory Benefits Coverage B. Employers' Liability limits of not less than: Bodily Injury by accident Bodily Injury by disease Bodily Injury by disease $500,000 each accident $500,000 policy limit $500,000 each employee Coverage does not include a waiver of subrogation endorsement. 2. Commercial Auto Coverage: Automobile Liability coverage of not less than $1,000,000 combined single limit, each accident, covering all owned, hired and non -owned autos. 3. Commercial General Liability: Commercial General Liability coverage of not less than: Each Occurrence Limit Personal Advertising Injury Limit Products/Completed Operations Aggregate Limit General Aggregate Limit (other than Products/Completed Operations) Policy notes: $1,000,000 $1,000,000 $2,000,000 $2,000,000 a) Consultant agrees to notify the client of changes to coverage limits. b) Additional Insured Endorsement are not given. c) Coverage shall be on a Claims Made basis. 4. Professional Liability: Professional Liability coverage of: Each Occurrence/Aggregate Limit MISCELLANEOUS A. Ownership of Instruments of Service $1,000,000 All reports, drawings, specifications, computer files, electronic files, BIM models, field data, notes and other documents and instruments prepared by CONSULTANT as instruments of service shall remain the property of the CONSULTANT. The CONSULTANT shall retain all common law, statutory, and other reserved rights, Owner's Initials Consultant's Initials P:\AGRMENTS\TYBEE ISLAND \Master Services Contract.doc City of Tybee Island Master Services Contract February 28, 2018 including, without limitation, the copyrights thereto. The CONSULTANT shall retain these records for a period of two (2) years following their completion during which period paper copies will be made available to the Project OWNER at reasonable times. B. Opinions of Probable Costs Since the CONSULTANT has no control over the cost of labor, materials, or equipment, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, his opinions of probable construction costs provided for herein are to be made on the basis of his experience and qualifications. These opinions represent his best judgment as a design professional familiar with the construction industry. However, the CONSULTANT cannot and does not guarantee that proposals, bids, or the construction cost will not vary from opinions of probable construction costs prepared by him. C. Electronic Files In accepting and utilizing any drawings, reports and data on any form of electronic media generated and furnished by the CONSULTANT, the OWNER agrees that all such electronic files are instruments of service of the CONSULTANT, who shall be deemed the author, and shall retain all common law, statutory law and other rights, without limitation, including copyrights. The OWNER agrees not to reuse these electronic files, in whole or in part, for any purpose other than for the Project. The OWNER agrees not to transfer these electronic files to others without the prior written consent of the CONSULTANT. The OWNER further agrees to waive all claims against the CONSULTANT resulting in any way from any unauthorized changes to or reuse of the electronic files for any other project by anyone other than the CONSULTANT. The OWNER is aware that differences may exist between the electronic files delivered and the printed hard -copy construction documents. In the event of a conflict between the signed construction documents prepared by the CONSULTANT and electronic files, the signed or sealed hard -copy construction documents shall govern. In addition, the OWNER agrees, to the fullest extent permitted by law, to indemnify and hold harmless the CONSULTANT, its officers, directors, employees and subconsultants (collectively, CONSULTANT) against all damages, liabilities or costs, including reasonable attorneys' fees and defense costs, arising from any changes made by anyone other than the CONSULTANT or from any reuse of the electronic files without the prior written consent of the CONSULTANT. Under no circumstances shall delivery of electronic files for use by the OWNER be deemed a sale by the CONSULTANT, and the CONSULTANT makes no warranties, either express or implied, of merchantability and fitness for any particular purpose. In no event shall the CONSULTANT be liable for indirect or consequential damages as a result of the OWNER's use or reuse of the electronic files. Owner's Initials Consultant's Initials P:\AGRMENTS\TYBEE ISLAND \Master Services C:ontract.doc City of Tybee Island Master Services Contract February 28, 2018 D. Certifications, Guarantees, and Warranties The CONSULTANT shall not be required to sign any documents, no matter by whom requested, that would result in the CONSULTANT's having to certify, guarantee or warrant the existence of conditions whose existence the CONSULTANT cannot ascertain or any way might, in the sole judgment of the CONSULTANT, increase the CONSULTANT's contractual or legal obligations or risks, or adversely affect the availability or cost of its professional or general liability insurance. The OWNER also agrees not to make resolution of any dispute with the CONSULTANT or payment of any amount due to the CONSULTANT in any way contingent upon the CONSULTANT's signing any such certification. E. Accessibility The OWNER acknowledges that the requirements of the Americans with Disabilities Act (ADA), Fair Housing Act (FHA) and other federal, state and local accessibility laws, rules, codes, ordinances and regulations will be subject to various and possibly contradictory interpretations. The CONSULTANT, therefore, will use its reasonable professional efforts and judgment to interpret applicable accessibility requirements in effect as of the date of [the execution of this Agreement, submission to building authorities, or other appropriate date) and as they apply to the Project. The CONSULTANT, however, cannot and does not warrant or guarantee that the OWNER's Project will comply with all interpretations of the accessibility requirements and/or the requirements of other federal, state, and local laws, rules, codes, ordinances, and regulations as they apply to the Project. Any changes in the applicable law or contrary interpretations of existing law subsequent to the issues of permits which requires CONSULTANT to perform redesign will be considered an additional service. F. Substitutions Upon the written request or direction of OWNER, CONSULTANT shall evaluate and advise OWNER with respect to proposed or requested changes in materials, products, or equipment. CONSULTANT shall be entitled to rely on the accuracy and completeness of the information provided in conjunction with the requested substitution. CONSULTANT shall not be responsible for errors, omissions, or inconsistencies in information by others or in any way resulting from incorporating such substitution into the Project. OWNER shall be invoiced for this service on a Time & Expense basis unless both parties mutually agree on a lump sum fee. G. Betterment If, due to the CONSULTANT's negligence, a required item or component of the Project is omitted from the CONSULTANT's construction documents, the CONSULTANT shall not be responsible for paying the cosi required to add such item or component to the extent that such item or component would have been required and included in the original construction documents. In no event will the CONSULTANT be responsible for any cost or expense that provides betterment, upgrades, or enhances the value of the Project. Owner's Initials —5— Consultant's Initials P:\AGRMENTS\TYBEE ISLAND \Master Services Contraci.doc City of Tybee Island Master Services Contract February 28, 2018 H. Changed Conditions If, during the term of this Agreement, circumstances or conditions that were not originally contemplated by or known to the CONSULTANT are revealed, to the extent that they affect the scope of services, compensation, schedule, allocation of risks or other material terms of this Agreement, the CONSULTANT may call for renegotiation of appropriate portions of this Agreement. The CONSULTANT shall notify the OWNER of the changed conditions necessitating renegotiation, and the CONSULTANT and the OWNER shall promptly and in good faith enter into renegotiation of this Agreement to address the changed conditions. If terms cannot be agreed to, the parties agree that either party has the absolute right to terminate this Agreement in accordance with the Termination provision hereof. Code Compliance The CONSULTANT shall exercise usual and customary professional care in its efforts to comply with applicable laws, codes and regulations in effect as of the date of this agreement was written. Design changes made necessary by newly enacted laws, codes and regulations after this date shall entitle the CONSULTANT to a reasonable adjustment in the schedule and additional compensation in accordance with the Additional Services provisions of this Agreement. In the event of a conflict between laws, codes and regulations of various governmental entities having jurisdiction over this Project, the CONSULTANT shall notify the OWNER of the nature and impact of such conflict. The OWNER agrees to cooperate and work with the CONSULTANT in an effort to resolve this conflict. J. Delegated Design Where any design services are provided by persons or entities not under CONSULTANT's direct control, CONSULTANT's role shall be limited to its evaluation of the general conformance with the design intent and the interface with CONSULTANT's design and portion of the project. Except to the extent, it is actually aware of a deficiency, error, or omission in such design by others, CONSULTANT shall have no responsibility for such design and may rely upon its adequacy, accuracy, and completeness in all respects. K. Limits of Liability Services to be performed by the Consultant under this Contract are intended solely for the benefit of the Owner. Nothing contained herein shall confer any rights upon or create any duties on the part of the Consultant toward any person or persons not a party to this Contract including, but not limited to, any contractor, subcontractor, supplier, or the agents, officers, employees, insurers, or sureties of any of them. Owner's Initials Consultant's Initials P:\AGRMENTS\TYBEE ISLAND \Master Services Contract.doc City of Tybee Island Master Services Contract February 28, 2018 L. Acts of Others The CONSULTANT shall not be responsible for the means, methods, techniques, sequences, or procedures of construction selected by Contractor(s) or the safety precautions and programs incident to the work of Contractor(s). CONSULTANT shall not be responsible for the failure of Contractor(s) to perform the work in accordance with the Contract Documents. The CONSULTANT shall not be responsible for the acts or omissions of any Contractor, or sub -contractor, or any of the Contractor(s)', or sub -contractors' agents, or employees or any other persons (except CONSULTANT's own employees and agents) at the site or otherwise performing any of the Contractor(s)' work. However, nothing contained herein shall be construed to release CONSULTANT from liability for failure to perform properly the duties undertaken by CONSULTANT in the Contract Documents. The CONSULTANT shall not be responsible for the acis, omissions, means, methods, or specifications of other design professionals not directly retained by CONSULTANT. Unless specifically stated otherwise within individual project scopes (i.e. where structural services for a building are required), the CONSULTANT's work and responsibility under this Contract terminates at the building pad or within five (5) feet of the building, whichever is greater, for any proposed building shown on the plans. The OWNER/Architect/Contractor is responsible for compliance with codes, regulations, manufacturer specifications, and construction methods related to the building structure. In no circumstance is the CONSULTANT responsible for any portion of the building, especially as it relates to moisture or mold. M. Time Bar to Legal Action All legal actions by either party against the other arising out of or in any way connected with this Agreement or the services to be performed hereunder shall be barred and under no circumstances shall any such legal action be initiated by either party after eight (8) years from the date of Substantial Completion, unless this Agreement shall be terminated earlier, in which case the date of termination of this Agreement shall be the date on which such period shall commence. Nothing in this Agreement is construed to waive any protections granted under existing laws of the state in which the work is performed. N. Consequential Damages Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither the OWNER nor the CONSULTANT, their respective officers, directors, partners, employees, contractors or subconsultants shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected in any way to the Project or to this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation and any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of strict or implied warranty. Both the OWNER and the CONSULTANT shall require similar waivers of consequential damages protecting all the entities or persons named herein h all Owner's Initials Consultant's Initials P:\AGRMEN TS\TYBEE ISLAND \Master Services Contract.doc City of Tybee Island Master Services Contract February 28, 2018 contracts and subcontracts with others involved in this project. Consequential damages can be modified in an individual addendum if agreed to by both parties. O. Value Engineering (If) OWNER has elected to engage in value engineering of the Project, OWNER has established cost as a primary project objective over other programming, performance, and aesthetic objectives and recognizes that in doing so, it has limited the available design and product options. These limitations may impact the overall project cost, schedule, and performance. OWNER has accepted these risks and impacts in recognition of the importance it has placed on project cost. P. Jobsite Safety Neither the professional activities of the CONSULTANT, nor the presence of the CONSULTANT or its employees and subconsultants at a construction/project site, shall impose any duty on the CONSULTANT, nor relieve the General Contractor of its obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending and coordinating the Work in accordance with the Contract Documents and any health or safety precautions required by any regulatory agencies. The CONSULTANT and its personnel have no authority to exercise any control over any construction contractor or its employees in connection with their work or any health or safety programs or procedures. The OWNER agrees that the General Contractor shall be solely responsible for jobsite and worker safety and warrants that this intent shall be carried out in the OWNER'S contract with the General Contractor. The OWNER also agrees that the General Contractor shall defend and indemnify the OWNER, the CONSULTANT and the CONSULTANT's subconsultants. The OWNER also agrees that the OWNER, the CONSULTANT and the CONSULTANT's subconsultants shall be made additional insureds under the General Contractor's policies of general liability insurance. Q. Hazardous Material Both parties acknowledge that the CONSULTANT's scope of services does not include any services related to the presence of any hazardous or toxic materials and/or mold. In the event the CONSULTANT or any other person or entity involved in the project encounters any hazardous or toxic materials and/or mold, or should it become known to the CONSULTANT that such materials may be present on or about the jobsite or any adjacent areas that may affect the performance of the CONSULTANT's services, the CONSULTANT may, at its sole option and without liability for consequential or any other damages, suspend performance of its services under this Agreement until the OWNER retains appropriate qualified consultants and/or contractors to identify and abate or remove the hazardous or toxic materials and warrants that the jobsite is in full compliance with all applicable laws and regulations. R. Dispute Resolution Any dispute or claim arising out of or relating to this Agreement shall be determined as follows: CONSULTANT and OWNER will negotiate in good faith to reach agreement. If negotiations are unsuccessful, CONSULTANT and OWNER agree the Owner's Initials -8- Consultant's Initials P:\AGRMENTS\TYBEE ISLAND\Master Services Contract.doc City of Tybee Island Master Services Contract February 28, 2018 dispute shall be settled by mediation. In the event the dispute or any issues remain unresolved after the above steps, the disagreement shall be decided by such remedies of law as they are available to the parties. The appointment of a mediator and location will be subject to agreement between CONSULTANT and OWNER with each party being responsible for their portion of those costs. S. Termination In the event of termination of this Agreement by either party, the OWNER shall within fifteen (15) calendar days of termination pay the CONSULTANT for all services rendered and all reimbursable costs incurred by the CONSULTANT up to the dale of termination, in accordance with the payment provisions of this Agreement. Either party may terminate this Agreement for the convenience and without cause upon giving the other party not less than fifteen (15) calendar days' written notice. Either party may terminate this Agreement for cause upon giving the ocher party not less than seven (7) calendar day's written notice for any of the following reasons: • Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Project by either party fo any other entity without the prior written consent of the other party; • Suspension of the Project or the CONSULTANT's services by the OWNER for more than ninety (90) calendar days, consecutive or in the aggregate; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. In the event of any termination that is not the fault of the CONSULTANT, the OWNER shall pay the CONSULTANT, in addition to payment for services rendered and reimbursable costs incurred, for all expenses reasonably incurred by the CONSULTANT in connection with the orderly termination of this Agreement, including but not limited to demobilization, reassignment of personnel, associated overhead costs and all other expenses directly resulting from the termination. T. Abandoned or Suspended Work If any work performed by the Consultant is abandoned or suspended in whole or in part by the Owner, other than for default by the Consultant, the Consultant shall be paid for services performed prior to receipt of a written notice from the Owner of such abandonment or suspension in an amount equal to work performed as of the date of abandonment or suspension. U. Additional Services of Consultant If authorized by Owner in writing, Consultant shall furnish or obtain from others, Additional Services of the following types that are not considered normal or customary Basic Services. Owner's Initials —9 - Consultant's Initials P:\AGRMENTS\TYBEE ISLAND \Master Services Contract.doc City of Tybee Island Master Services Contract February 28, 2018 1 Revising previously accepted studies, reports, design documents, or Contract Documents when such revisions are due to causes beyond Consultant's control. 2. Furnish the services of special consultant for other than the civil or structural engineering defined in the scope of services. Special services include services such as mechanical or electrical engineering, geotechnical exploration, underwater investigation, laboratory testing, and inspections of samples, materials, and equipment. 3. Preparing to serve or serving as a consultant or witness for Owner in any litigation, public hearing, or other legal or administrative proceeding involving the project. 4. Defending the issuance of any permit or certificate for the project. Services for the defense against third party actions opposing or appealing the issuance of any permit or certificate for the Project will commence with receipt of notification of the action. 5. Defending submittal Engineering Reviews on behalf of the City of Tybee Island. 5. Services after completion of the Construction Phase, such as inspections during any equipment, material, or construction guarantee period and reporting observed discrepancies under guarantees called for in any contract for the project. 6. If requested by Owner and agreed to in writing, a Resident Project Representative will be furnished and will act as directed by Consultant in order to assist in observing performance of the work of Contractor(s). Through more extensive on-site observations of the work in progress by the Resident Project Representative, Consultant shall endeavor to provide further protection for the Owner against defects and deficiencies in the work of Contractor(s). However, the furnishing of such representation will not make Consultant responsible for construction means, methods, techniques, sequences, procedures, or for safety precautions or programs, or for Contractor(s), failure to perform their work in accordance with the Contract Documents. Owner's Initials -10- Consultant's Initials P:\AGRMENTS\TYBEE ISLAND \Master Services Contract.doc City of Tybee Island Master Services Contract February 28, 2018 V. Amendment This Contract for Services can be amended by addenda if agreed to in writing and signed by both parties. Consultant personnel up to Group Leader level are authorized to execute Addenda in an amount of no greater than $150,000 per Addenda. Amounts greater require officer of the company co -signature. APPROVED: APPROVED: THOMAS & HUTTON ENGINEERING CO. CITY OF TYBEE ISLAND, GEORGIA By: By: Christopher Stovall, P.E. e�ae bnorab Iterman Title: Principal Title: Mayor -City of Tybee Island Date: By: Be y K. Jones, Jr., P.E. Title: Senior Vice President/COO Date: 2/2 Owner's Initials Consultant's Initials P:\AGRMENTS\TYBEE ISLAND \Master Services Contract.doc Date: -11- i%y% I�f►,�